NO. 03- 14

- 00 239- CV

____________________________________________________

IN THE THIRD COURT OF APPEALS

AT AUSTIN, TEXAS

____________________________________________________

DR. AMBER BROOKS, D.C., Appellant,

v.

TEXAS MEDICAL BOARD, et al., Appellee s.

____________________________________________________

On Appeal from the 353rd Judicial District Court of Travis County, Texas

The honorable Timothy Sulak presiding

Cause No. D-1- GN

- 13 -003617

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APPELLEES’ SUPPLEMENTAL BRIEF

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TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellees; the Texas Medical Board and, in their official capacities only, Mari

Robinson (Executive Director), Irvin E. Zeitler, Jr., D.O., and Paulette Southard

(hereinafter collectively referred to as the “TMB”) respectfully submit the following

supplemental brief in the captioned appeal.

STATEMENT REGARDING ORAL ARGUMENT

The TMB conditionally requested oral argument on the first page of its

original brief. The TMB stated in its brief that it does not believe oral argument is ACCEPTED
03-14-00239-CV

4311837
THIRD COURT OF APPEALS

AUSTIN, TEXAS
2/27/2015 11:23:46 AM

JEFFREY D. KYLE

CLERK2

necessary. The TMB wises to clarify that it does reserve the right to participate in

oral argument should it be granted.

RESPONSE TO APPELLANT’S REPLY BRIEF

The TMB submits this supplemental brief for the purpose of clarifying two

points raised in the reply brief filed by Appellant, Amber Brooks (“Brooks”) on

August 11, 2014.

On page 19 of her reply brief, Brooks states that the TMB referred to Tex.

Gov’t Code § 2001.052 in arguing that cease and desist proceedings are not subject

to the Texas Administrative Procedure Act (“APA”) in the first place. See the

TMB’s brief at 14. The TMB intended to refer to Tex. Gov’t Code § 2001.054, not

.052. (The TMB clearly referred to and discussed § 2001.054 on the same page of

its brief to w hich Brooks refers).

On page 21 of her reply brief, Brooks states that the TMB cited Tex. Occ.

Code § 151.504(d) in support of its contention that the Veterinary Board’s statute

specifically provides that its cease and desist proce edings are subject to th e APA.

See the TMB’s brief at 16. The TMB intended to refer to Veterinary Board rule

575.40(d)(2), which specifically provides that, in cease and desist proceedings, “ the

Board may refer the complaint and investigative file to the State Office of

Adminis trative Hearings for a contested case proceeding (thus subjecting Veterinary

Board cease and desist proceedings to APA procedures)

. ” 22 Tex. Admin. Code §3

575.40(d)(2). Compare TMB Rule 187.83(e), outlining detailed procedures for

cease and desist procee dings before a TMB panel (and not the contested case

procedures under the APA). 22 Tex. Admin. Code § 187.83(e).

Dated: February 27, 2015

Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR. Division Chief, Administrative Law

Division

/s/ Ted A. Ross

Ted A. Ross

Assistant Attorney General

State Bar No. 24008890

O FFICE OF THE T EXAS A TTORNEY G ENERAL
A DMINISTRATIVE L AW D IVISION
P. O. Box 12548 Austin, Texas 78711

- 2548

Tele p hone: (512) 475

- 4191 Facsimile: (512) 320

- 0167 Email: ted.ross@texasattorneygeneral.gov Attorneys f

or Appellee s Texas Medical

Board , et al.4 CERTIFICATE OF COMPLIANCE

I hereby certify compliance with Texas Rules of Appellate Proc edure 9 and

that there are 340 words in this document. Microsoft Word was used to prepare this filing and calculate the number of words in it.

/s/ Ted A. Ross

Ted A. Ross Assistant Attorney General

CERTIFICATE OF SERVICE

I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of Appellate Procedure, a true and co rrect copy of the above and foregoing document has been served on the following on this the 27 th day of February 201 5 :

Robert D. Simpson, Of Counsel Via: Electronic Service and email

Andre D’Souza Leichter Law Firm, PC

1602 E. 7th Street Austin, Texas 78702

Email: robert @ leichterlaw.com andre@leichterlaw.com

/s/ Ted A. Ross

Ted A. Ross Assistant Attorney General